September 05, 2013

Judge Wilkins Faces Different Senate Confirmation Process

U.S. District Court Judge Robert Wilkins sailed through his Senate judicial confirmation process in 2010. Almost three years later, he'll be back testifying on Capitol Hill next week as a nominee for the U.S. Court of Appeals for the D.C. Circuit.

It's safe to say, many things will be different for Wilkins this time. And it doesn't take a degree in chemical engineering—Wilkins has one—to know things will be a lot more volatile.

Here's three ways that his experience on the Hill—he's scheduled to appear Wednesday—will be different:

Last time, he was asked only easy questions. In 2010, Wilkins, then a Venable partner, appeared as a nominee for the U.S. District Court for the District of Columbia. He testified alongside a slate of other nominees, and the Senate Judiciary Committee asked Wilkins about only two safe topics.

The first, Senator Sheldon Whitehouse (D-R.I.) laid out his own views on judicial activism and asked if Wilkins would abide by them. "I think that those are all excellent guideposts that I would certainly also affirm that I would try to maintain and abide by during my tenure, if I am so fortunate as to be confirmed," Wilkins said.

Then, Senator Al Franken (D-Minn.) asked Wilkins, "What will you do as a judge to ensure that everyone who comes in your courtroom has equal access to justice?" There was a follow-up question from Franken seeking clarification.

That was it. Really.

This time, Wilkins will be appearing by himself, making him the only target for questions. And confirmation hearings for the other two pending nominees to the D.C. Circuit—Patricia Millett and Cornelia Pillard—have turned into a platform for senators to opine about the heated politics of Obama's push to fill the court.

Senators can dig through his rulings. Wilkins is considered a non-controversial nominee since he already won Senate approval for his current job on the bench. But both parties realize the D.C. Circuit is a key place for the executive branch to either get a green light or red light on domestic actions.

So on his questionnaire, Wilkins had to list the "10 most significant cases over which you presided." There are a few political hot potatoes that senators might ask him about, including the one Wilkins ranked at #9—State of Texas v. Holder.

Wilkins served on a three-judge panel that refused to allow Texas to implement its controversial voter-identification law, which has become a major issue since the U.S. Supreme Court in June gutted a key provision of the Voting Rights Act of 1965. In August, Holder sued Texas in an attempt to continue fighting those same laws.

Senators Ted Cruz (R-Texas) and John Cornyn (R-Texas) are both outspoken members of the judiciary committee and strong supporters of the Texas voting law Wilkins helped strike down.

Wilkins also heard two U.S. Federal Elections Commission cases, including the McCutcheon v. FEC case where the Republican National Committee challenged aggregate campaign contribution limits Congress enacted in the Federal Elections Campaign Act of 1971. Wilkins joined the opinion dismissing the challenge; the appeal is now at the U.S. Supreme Court.

Last time the vote was non-controversial and relatively quick. Wilkins was nominated to the district court in May 2010 and got a confirmation vote from the full Senate six months later. Sure, there were some politics involved with trying to get judicial nominees votes on the Senate floor at the time. But Wilkins was voted through without opposition or debate.

There's almost no chance of that this time. Republicans are voicing opposition to filling any more vacancies on the D.C. Circuit, often considered the country's most important court second to the U.S. Supreme Court.

Obama's first nominee to the D.C. Circuit, Millett, was told by Republicans on the judiciary committee that she was qualified for the job. Yet all committee Republicans voted against approving the nomination of Millett, an appellate litigation partner at Akin, Gump, Strauss Hauer & Feld. The workload, critics said, does not justify filling the three vacancies on the 11-member court at this time.

Republicans appear poised to block D.C. Circuit nominations, setting up a showdown that could once again cause Democrats to threaten a historic change to the Senate's filibuster rules to allow for confirmation votes.

If Democrats can convince enough Republicans to change the rules, then Wilkins' nomination—along with the nomination of Millett and Pillard, a Georgetown University Law Center professor—could move quickly. But if they can't, the nominations could be stalled indefinitely.